160 Iowa 650 | Iowa | 1911
As wo have reached "the conclusion that we must sustain appellee’s motion to dismiss this appeal on-
In March, 1909, the city entered into a contract with the defendants Lehmann & Bradley, who will hereafter be spoken of as the contractors, for the improvement by paving and curbing of a short street. Among the specifications of the contract -were the provisions that the curbing should be of sandstone, and the paving of brick having an absorption test of not more than 2 per cent and a rattler test of not to exceed 16 per cent. This contract was let to these contractors in accordance with competitive bidding in which said contractors were the lowest bidders; plaintiff being an unsuccessful bidder. The cost was to be paid by assessment upon abutting property, save the expense of paving one street intersection and the alley intersections, which was to be paid out of the improvement fund. Before the work was commenced, some agreement was made between the officers of the city and the contractors by which the width of the street was to be reduced and a cement curb and gutter substituted for the sandstone curbing, and this agreement was on the petition of the abutting property owners. When the work had been partially performed under the modified agreement, objection was made by the city engineer that the brick used was not in accordance with the specifications, in that the absorption test showed a 5 per cent., instead of a 2 per cent., absorption. Thereupon the property owners petitioned the city council that the work be allowed to continue to completion with the same kind of material as that which had already been used, and it was thus completed without objection on the part of the property owners. Such owners afterward and before the commence
It is suggested in appellant’s resistance to the motion to dismiss, supported by some attempted showing by affidavits, that a civil suit is now pending in which Lehmann & Bradley seek to recover damages from this plaintiff for the wrongful
A motion is submitted with the case to strike a portion of appellee’s argument on the merits, but, as it relates to the subject-matter which has been brought before us by the motion to dismiss, we see no reason for sustaining it. Such motion is therefore overruled.
The motion to dismiss the appeal is Sustained.
SUPPLEMENTAL OPINION.
But the case, as we have seen, is ended. The injunction proceedings must end with the ease. The injunction is a remedy sought in the action; it is an incident or a proceeding in the action. This incident — this proceeding — must fall when there ceases to be a case. . . . This court will not*657 determine questions unless there be pending cases in which the questions arise. If remedies be sought and rights claimed in actions, the withdrawal, settlement, or abandonment of claims for such remedies or rights leaves nothing for us to determine in relation thereto. There must be real, present questions, involving actual interests or rights of the parties, to authorize us to consider the ease in which they arise. We will not settle questions involved in rights now no longer existing; and when, in a case pending in this court, rights cease to exist, the appeal will be dismissed.
The case of People v. Clark, 70 N. Y. 518, is quite in point upon the question. There a citizen brought an action to restrain proceedings for the incorporation of a village. A temporary injunction was granted and afterwards dissolved and the corporation was completed. The Court of Appeals refused to review the ruling upon the injunction, saying: “We do not deem it necessary to determine whether the action was maintainable as originally commenced. As it appeared upon the trial and is presented to us upon appeal, no effectual judgment can be rendered in it.” The principle is also affirmed in Dinsmore v. Express Co., 183 U. S. 115. (22 Sup. Ct. 45, 46 L. Ed. 1111).